The first question transferred is the following: “In a malpractice action is the two year Statute of Limitations tolled by fraudulent concеalment of facts allegedly giving rise to the cause of action?”
USA 508:4 provides that “Actions of trespass to the person, actions for malpractice, and actions for defamatory words may be *303 brought within two years, and all other personal actions within six years, after the cause of action accrued, and not afterward.” Laws 1937, c. 21, s. 1, added actions for malpractice to the above statute which otherwise had been in substantially the same form since 1867. Ferry v. Ferry, 94 N. H. 395, 396.
Here is the chronology of events in this case. December 12, 1952 defendant is alleged to have carelessly and improperly operated upon and treated plаintiff’s hip so that in nailing the left femoral neck he drove the nail beyond the head of the femur and well into the acetabulum. July 21, 1955 the cоurse of treatment by the defendant ended. March 12, 1956 plaintiff alleges he learned for the first time the facts which are the basis of this сause of action. December 17, 1957 plaintiff brought the writ commencing this, action.
Statutes of limitations are regarded as statutes of repose governing the period within which actions must be brought and are designed to eliminate fraudulent and stale claims.
Chase Securities Corp.
v.
Donaldson,
It is well established that our courts will not countenance fraudulent conduct.
Way
v.
Cutting,
20 N. H. 187, 190;
Dion
v.
Cheshire Mills,
92 N. H. 414;
Lampesis
v.
Comolli,
101 N. H. 279, 283. We rеfuse to presume that the Legislature intended to give a wrongdoer the advantage and benefit of his fraudulent concealment of a cause of action until the statute of limitations has run. We hold that the two-year limitation upon actions for malpractice is tolled by fraudulent concealment of facts essential to the cause of action until such time as the injured person has discovered them or could have done so in the exercise of reasonable diligence at which time the statutory period of limitation will start to run.
*304
Way
v.
Cutting, supra; Quimby
v.
Blackey,
63 N. H. 77;
Hamlin
v.
Oliver,
77 N. H. 523;
The second question is “If the foregoing question is answerеd in the affirmative, and if the issue of the Statute of Limitations is tried in advance of trial on the merits, is plaintiff entitled to trial by jury on this issue?”
Part I, Articlе 20th of our Constitution provides that “In all suits between two or more persons, except in cases in which it has been heretoforе otherwise used and practiced . . . the parties have a right to a trial by jury.” However “for many years it has been well settled here that in equity there is no constitutional right to trial by jury.” Dion v. Cheshire Mills, 92 N. H. 414, 416. “The nature of the case and of the relief sought must be looked to for the settlemеnt of the constitutional question.” Daley v. Kennett, 75 N. H. 536, 540; Employers Assurance Co. v. Tibbetts, 96 N. H. 296; Hampton v. Palmer, 99 N. H. 143, 145.
In our opinion the defense that the statute of limitations has been tolled by fraudulent conceаlment is in the nature of an equitable estoppel.
Although equity and law have jurisdiction over fraud “the nature of the relief is the key” to whether the particular issue is one at law or in equity. Dion v. Cheshire Mills, supra, 415. In the present cаse the plaintiff is seeking affirmative equitable relief from a legal bar to his action at law which has been asserted by the defendant and “if the issue of the Statute of Limitations is tried in advance of trial on the merits . . . [he is not] entitled to trial by jury on this issue.” Id., 416. The answer to the second question is “no.”
The final question is “Doеs the two year Statute of Limitations in malpractice actions apply to the count in Assumpsit as set forth in the writ?”
The relationshiр of physician and patient can give rise to two
*305
distinct causes of action, one for improper treatment, anothеr for failure of a promised result.
McQuaid
v.
Michou,
85 N. H. 299, 300;
Colvin
v.
Smith,
276 N. Y. App. Div. 9. The two causes of action are dissimilar as to theory, proof and damages recoverable.
Stewart
v.
Rudner,
We are of the opinion that by its terms the two-year limitation contained in RSA 508:4 was intended to apply to an action of tort for malpractice but not to an action of assumpsit for breach of contract.
Robins
v.
Finestone,
Plaintiff’s second count contains the following allegations: “Defendant . . . promised the Plaintiff by a special contract to set and cure, and heal the Plaintiff’s hip in a skillful and proper manner . . . yet the Defendant ... did not set, cure and heal the Plaintiff’s hip and left leg in a skillful and proper manner . . . but ... so unskillfully treated the same that by his unskillfulness the samе became . . . stiff and immovable . . . causing the plaintiff great inconvenience and suffering.” Although this count also alleges an express contract between the parties the gist of the allegations is defendant’s wrongful act. It alleges an action for treatmеnt in an improper manner rather than one for breach of a contract to achieve a promised result and comes within the two-year limitation of RSA 508:4.
McQuaid
v.
Michou, supra; Swankowski
v.
Diethelm,
*306 The answer to the third question is “yes,” the two-year statute of limitations applies to the count in assumpsit as set forth in the writ.
Remanded.